Smith v. School Board of Concordia Parish Court of Appeals Decision

Date: 
Friday, October 12, 2018
Document Type: 
Court Opinions

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 17-30548

United States Court of Appeals
Fifth Circuit

FILED

October 12, 2018

Lyle W. Cayce
Clerk

VERNON SMITH on behalf of IRMA J. SMITH,
Plaintiff

UNITED STATES OF AMERICA,
Intervenor Plaintiff - Appellee

v.

SCHOOL BOARD OF CONCORDIA PARISH,
Defendant - Appellee

v.

DELTA CHARTER GROUP INCORPORATED,
Intervenor - Appellant

Appeal from the United States District Court
for the Western District of Louisiana

Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:

 

In 2012, Delta Charter Group sought to open a public charter school in
Concordia Parish, Louisiana, which is under a long-standing desegregation


order overseen by the Western District of Louisiana. Louisiana law states that
charter schools “shall . . . [b]e subject to any court-ordered desegregation plan
in effect for the city or parish school system.” La. Stat. Ann. § 17:3991(C).
Delta therefore intervened in this case and asked United States District Judge
Dee Drell for permission to operate in Concordia Parish. The district court
granted permission after Delta and the Concordia Parish School Board entered
into a consent decree obliging Delta to, among other duties, comply with the
desegregation order; not impede the Board’s ability to comply with the
desegregation order; and enroll a student body with racial demographics
reflecting the demographics of the Concordia Parish School District as a whole.

When Delta opened for the 2013–14 school year, only 15% of Delta’s 323
accepted students were African American. In contrast, enrollment in
Concordia Parish School District was 49.5% African American and 49% white.
Delta’s enrollment, in the Board’s view, therefore violated the terms of the
consent decree, and in June 2014, the Board requested relief from the district
court. Years of discovery and failed negotiations followed, during which Delta
continued to operate and to enroll predominantly white (greater than 80%)
student bodies. In February 2017, the district court held a three-day
evidentiary hearing and found that Delta had violated the consent decree. In
June 2017, the district court imposed further remedies to enforce the decree.
Delta has appealed.

This appeal presents a narrow question: whether a party is bound by
the terms of a consent decree that it voluntarily entered. We hold that it is
and generally affirm, but vacate one provision of the ordered relief that
exceeded the district court’s remedial authority.

I.

In 2012, the Louisiana Board of Elementary and Secondary Education
(“BESE”) approved Delta Charter Group to operate the Delta Charter School

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of Math, Science, and Technology in Ferriday, Louisiana, as a “Type 2” charter
school within Concordia Parish.1 Under Louisiana law, charter schools are
“independent public school[s]” and are “subject to any court-ordered
desegregation plan in effect for the city or parish school system.” La. Stat. Ann.
§§ 17:3973(2)(a), 17:3991(C)(3); see also Iberville Par. Sch. Bd. v. Louisiana
State Bd. of Elementary & Secondary Educ., 248 So. 3d 299, 308 (La. 2018)
(finding that Type 2 charter schools are “public schools” under the Louisiana
constitution). Since 1970, Concordia Parish has operated under a
desegregation order entered by the Western District of Louisiana. Accordingly,
Delta moved to intervene in the case in September 2012 and asked that the
district court allow it to open Delta Charter School.

While a desegregation order remains effective, the district court has a
“constitutional duty” to enforce the order and to ensure that the school district
“take[s] all steps necessary to eliminate the vestiges of the unconstitutional de
jure system.” Hull v. Quitman Cty. Bd. of Educ., 1 F.3d 1450, 1458, 1453 (5th
Cir. 1993) (quoting Freeman v. Pitts, 503 U.S. 467, 485 (1992)). A district court
asked to authorize a new charter school will consider whether the proposed
school would undermine the ongoing desegregation order and may impose
conditions on the school’s operation if necessary. See, e.g., Cleveland v. Union
Par. Sch. Bd., 570 F. Supp. 2d 858, 867–68, 871 (W.D. La. 2008); Berry v. Sch.
Dist. of City of Benton Harbor, 56 F. Supp. 2d 866, 875 (W.D. Mich. 1999). In
this regard, we note that new school districts hoping to separate from existing

________

1 There are five categories of charter schools under Louisiana law. Types 1 and 3 are
operated pursuant to a charter between the nonprofit corporation responsible for operating
the school and the local school board; Types 2 and 5 are operated pursuant to a charter
between the nonprofit corporation and the BESE; and Type 4 schools are operated pursuant
to a charter between the local school board and the BESE. La. Rev. Stat. § 17:3973(2)(b).
Delta Charter School is a Type 2 school. Only Type 2 schools may draw students from
anywhere in the state; enrollment at all others is restricted to students who live in the local
city, parish, or school district in which the school operates. Id.

3



districts governed by desegregation orders must “prove the availability of
procedures, methods, and agreements that . . . will avoid any adverse impact
upon the present federal plan of desegregation . . . [and] support
implementation of those procedures.” Valley v. Rapides Par. Sch. Bd., 173 F.3d
944, 945 (5th Cir. 1999) (en banc); see also Ross v. Houston Indep. Sch. Dist.,
583 F.2d 712, 714 (5th Cir. 1978) (“The division of a school district operating
under a desegregation order can be permitted only if the formation of the new
district will not impede the dismantling of the dual school system in the old
district.” (citing Wright v. Council of the City of Emporia, 407 U.S. 451 (1972)
and United States v. Scotland Neek City Bd. of Educ., 407 U.S. 404 (1972))).

Accordingly, in January 2013, Delta and the Board entered into a
consent decree establishing the terms and conditions for Delta Charter School’s
operation. “To ensure that [Delta] meets its desegregation obligations
consistent with orders entered in this case,” the consent decree “enjoined
[Delta] from failing to implement in good faith” various obligations. Among
other promises, Delta agreed to “comply with the desegregation obligations
mandated by this case” and to “take no action that will impede the Concordia
Parish School Board’s ability to fulfill its obligations to comply with the Orders
in this case and applicable federal desegregation law.” Delta also agreed to
advertise and recruit students within African American communities, and to
maintain a student body that “reflect[s] the racial demographics of the
Concordia Parish School District.” If “the percentage of black student
enrollment in Delta Charter School is 10% or more below the black student
enrollment in the Concordia Parish School District,” Delta committed that it
would “analyze the causes of this enrollment rate, propose how to modify the
enrollment rate, and submit the analysis and proposal to the Court and the
parties.”

4


When Delta opened for the 2013–14 school year, Delta enrolled 323
students, of whom only 49 (15%) were African American and 274 (85%) were
white. By comparison, enrollment in Concordia Parish School District was 50%
African American and 49% white in 2012. At the end of the 2013–14 school
year, in June 2014, the Board moved for remedial relief, contending that Delta
had failed to comply with the consent decree. The Board argued that Delta
had (1) interfered with the Board’s ability to satisfy its desegregation
obligations by drawing white students away from disproportionately minority
schools in Concordia Parish; and (2) failed to meet its enrollment targets for
African American students. Delta opposed the motion, recognizing its
obligations under the consent decree but contending that it “ha[d] fully
complied with the Consent Order by taking affirmative steps to recruit and
enroll black students.”

A lengthy period of discovery and negotiations followed, and Delta
continued to operate with a predominantly white student body. For the 2014–
15 school year, Delta enrolled 380 students, of whom 68 (18%) were African
American and 303 (80%) were white. The following year, 2015–16, Delta
enrolled 455 students, of whom 89 (20%) were African American and 358 (79%)
were white. For the 2016–17 year, Delta enrolled 499 students, of whom 85
(17%) were African American and 401 (80%) were white. Despite Delta’s
consistent failure to achieve its enrollment targets, the status reports that it
filed in 2015, 2016, and 2017 pursuant to the consent decree neither analyzed
the causes of Delta’s low enrollment rate of African American students nor
proposed corrective measures.

The district court set a hearing on the Board’s motion for relief on
Monday, February 13, 2017. The Friday before, Delta filed a “motion for
partial relief” from the 2013 consent decree. Delta sought relief “from any
condition of the Order which may limit . . . the number of students by race

5

 

which Delta Charter may accept for enrollment in any given school year.”
Relying on its self-asserted “good faith commitment to fulfilling its
obligations,” and a previously undisclosed expert report suggesting that Delta’s
operation was “not impeding the District’s ability to meet its obligations,” Delta
argued that the consent decree’s enrollment requirements were “no longer
justified.” In the alternative, Delta sought “dismissal” of the Board’s motion
“for failure to state a claim” on the ground that “a district court should not
enjoin an independent school district, such as a charter school, from accepting
students just because the transfer may increase racial imbalance.” The district
court refused to consider Delta’s last-minute filing, however, because it was
filed immediately before the “long-noticed hearing” and relied on a previously
undisclosed expert witness. On the same basis, the district court also refused
to consider any testimony from the school district’s expert. Delta does not
challenge these untimeliness findings on appeal.2

At the hearing, the Board and the United States, as intervenor,
presented evidence that Delta had violated the consent decree. An expert
witness for the United States, Dr. Genevieve Siegel-Hawley, testified that
Delta was drawing “disproportionately white” students away from Concordia
Parish and thus having “a negative impact on the district’s ability to
desegregate.” For example, she testified that schools in Ferriday, a majority
African American town, lost 20% of their white students to Delta in its first
year of operation, and lost a further 5 to 10% each year thereafter. In
Concordia Magnet School, which at 50% white student enrollment is Concordia
Parish’s most racially balanced school, lost 15% of its white students to Delta
in Delta’s first year.

__________

2 As the concurring opinion explores, Delta remains free to move to modify the consent
decree on remand.

6

 

With respect to Delta’s efforts to recruit African American students, Dr.
Siegel-Hawley testified that there was considerably more Delta could have
done. She compared Delta to the Concordia Magnet School, another “school of
choice opened around the same time in the parish with a similar theme and
with a lottery-based admissions policy.” She explained that the magnet school
was able to achieve its diversity by advertising widely through newspapers and
direct mailings, providing free transportation, and conducting a dual lottery
system with separate lists for African American and white students. Delta, by
comparison, advertised in local newspapers but did not send out direct
mailings, did not provide transportation, and maintained a lottery system that,
in Dr. Siegel-Hawley’s opinion, was “murky and unclear,” creating the
impression that “the lottery isn’t fair to all applicants.”

After taking evidence for three days, the district court found that Delta
was in “deliberate noncompliance” with the consent decree and that its
enrollment practices had “substantially impacted” the Board’s ongoing
desegregation efforts. After additional briefing on remedies, the district court
ordered that enrollment at Delta be limited to 350 students from Concordia
Parish, and that “[a]dditional students may be added from other parishes NOT
under current desegregation orders unless permission for students in courtsupervised
parishes is granted after contradictory hearing with the affected
school boards.”3 The district court further ordered that Delta establish a
diversity committee to develop recruitment strategies to increase minority

__________

3 The language of the district court’s order is somewhat unclear here. The district
court appears to have intended to leave unrestricted Delta’s ability to enroll students from
parishes not under desegregation orders but to prevent Delta from enrolling students from
other parishes that are under desegregation orders absent permission from the relevant
school boards. But the exact nature of the limitation placed on the enrollment of students
from other parishes is irrelevant. As we explain below, the district court lacked the remedial
authority to order any relief encompassing parishes other than Concordia.

7

 


student enrollment and that Delta make a good-faith effort to implement the
committee’s recommendations. Finally, the district court appointed a special
master to monitor Delta’s compliance. Delta timely appealed the district
court’s entry of relief for the Board.

II.

We review the implementation of desegregation remedies for abuse of
discretion. Cowan v. Cleveland Sch. Dist., 748 F.3d 233, 238 (5th Cir. 2014).
We review conclusions of law de novo, and findings of fact for clear error. Id.
A finding of fact is clearly erroneous if “although there is evidence to support
it, the reviewing court on the entire record is left with the definite and firm
conviction that a mistake has been committed.” Anderson v. Sch. Bd. of
Madison Cty., 517 F.3d 292, 296 (5th Cir. 2008) (quoting Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985)). We must accept factual findings that
are “plausible in light of the record viewed in its entirety.” Id. (quoting Price
v. Austin Indep. Sch. Dist., 945 F.2d 1307, 1312 (5th Cir. 1991)).

III.

A.

On appeal, Delta does not limit its primary argument to the specific relief
ordered from which Delta noticed its appeal, but rather sets its sights on the
district court’s authority to enforce the preexisting desegregation order. Delta
seeks to argue that because it is an “independent,” Type 2 charter school,
enforcing the desegregation order against it amounts to an impermissible
interdistrict remedy. It relies on Milliken v. Bradley, 418 U.S. 717 (1974),
where the Supreme Court held that interdistrict remedies may not be imposed
in school desegregation cases absent “an interdistrict [constitutional] violation
and interdistrict effect.” Id. at 744–45. Delta argues that because the district

8

 

court never found an interdistrict violation, the court lacked the authority to
enforce the desegregation order in effect in Concordia Parish against it.4

But here, the district court’s remedial authority derives from the consent
decree itself, in which Delta expressly agreed that “it is governed by and that
it will comply with the desegregation obligations mandated by this case.” Delta
made this and other promises to assure its ability to operate within Concordia
Parish. Indeed, Delta repeatedly argued before the district court that a “Type
2 charter school is subject to any court-ordered desegregation plan in effect for
the city or parish school system”; that the district court “ha[d] the authority to
render a decision as to the authority to open any new public school, including
public charter schools in Concordia Parish”; that “the [c]ourt’s role in
determining what conditions or obligations apply to Delta Charter’s continued
operation should be guided by a determination of whether the charter school is
adversely impacting the racial balance in Concordia Parish School District”;
that Delta was “governed by the obligations set forth in the consent order”; and
that the district court had “authority to review that” and could award further
relief if the court found “that Delta Charter had violated the terms of the
consent order in a manner which has caused [the parish] harm.” As a result,
the only question presented is whether a court can enforce desegregation
obligations incorporated into a consent decree against a party that entered that
decree. We hold that it can.

Consent decrees are hybrid creatures, part contract and part judicial
decree. See Local No. 93, Int’l Ass’n of Firefighters, AFL-CIO C.L.C. v.
Cleveland, 478 U.S. 501, 519 (1983). The “voluntary nature of a consent decree

________

4 In its reply brief, without citation to any relevant caselaw, Delta argues that the
district court lacked jurisdiction to entertain its September 2012 motions to intervene in the
ongoing desegregation case and for authorization to open its school. We have reviewed
Delta’s original district court filings and perceive no lack of subject matter jurisdiction.

9

 

is its most fundamental characteristic”; “it is the agreement of the parties,
rather than the force of the law upon which the complaint was originally based,
that creates the obligations embodied in a consent decree.” Id. at 521–22; see
also id. at 525 (“[I]n addition to the law which forms the basis of the claim, the
parties’ consent animates the legal force of a consent decree.”). Consequently,
a consent decree can sweep more broadly than can other forms of court-ordered
relief. Id. at 525 (“[A] federal court is not necessarily barred from entering a
consent decree merely because the decree provides broader relief than the court
could have awarded after a trial.”).

Of course, the permissible scope of a consent decree is not unlimited. A
“consent decree must spring from, and serve to resolve, a dispute within the
court’s subject-matter jurisdiction; must come within the general scope of the
case made by the pleadings; and must further the objectives of the law upon
which the complaint was based.” Frew ex rel. Frew v. Hawkins, 540 U.S. 431,
437 (2004). The consent decree here falls comfortably within those bounds:
the desegregation requirements arise out of and serve to resolve a longstanding
desegregation effort in Concordia Parish properly overseen by the
district court;5 are within the scope of the case; and further the equalprotection
objectives of the original complaint.

B.

Delta alternatively argues that the district court’s order granting further
relief exceeded its remedial authority because it improperly relied on
purported violations of state law not incorporated into the consent decree and
was not justified by evidence that Delta had either itself violated the

_________

5 The Board was previously found to have engaged in unconstitutional racial
discrimination. See, e.g., Smith v. Concordia Par. Sch. Bd., 445 F.2d 285, 285 (5th Cir. 1971).
The Board has not moved for a declaration of unitary status, and the district court retains
jurisdiction. Lee v. Macon Cty. Bd. of Ed., 584 F.2d 78, 81 (5th Cir. 1978).

10

 

Constitution or impeded the Board’s desegregation efforts. We find these
arguments unavailing.

First, the district court did not rely on any purported violations of state
law in granting the Board’s motion for further relief or crafting additional
remedies. The district court discussed state law only after having “already
ruled that . . . Delta did not adhere to the terms of the consent judgment into
which it voluntarily entered.” The district court raised issues of state law only
to clarify “the approval [Delta] must seek and be granted in order to implement
changes outside of the consent judgment.”

Second, no finding of an independent constitutional violation was
necessary. As discussed above, by entering into the consent decree, Delta
vested the district court with authority to ensure Delta’s compliance. See
United States v. Alcoa, Inc., 533 F.3d 278, 286 (5th Cir. 2008) (“[D]istrict courts
have the power and ordinarily must hold parties to the terms of a consent
decree.”). To enforce the consent decree, the district court did not need to find
that Delta violated the Constitution, only that it violated the consent decree.

Third, and most importantly, considerable evidence showed that Delta
had violated the consent decree and “substantially impacted Concordia’s
compliance with ongoing desegregation orders.” There was evidence presented
that Delta disproportionately drew away white students and white teachers
from Concordia Parish, making it more difficult for the Board to achieve its
desegregation obligations. For example, schools in Ferriday, the only “zone” in
Concordia Parish that is majority African American, lost 20% of their white
students to Delta in Delta’s first year of operation. Ferriday schools continued
to lose 5 to 10% of their white students to Delta each year over the next three
years. With respect to teachers, there was evidence presented that of the 16
teachers Delta hired away from Concordia Parish schools, 15 were white.
Furthermore, the consent decree required Delta’s enrollment to reflect the

11

 


racial demographics of Concordia Parish School District. It is undisputed that
Delta’s enrollment fell far short of that target and that Delta failed to submit
the required reports explaining and addressing its shortcoming. The record as
a whole supported the district court’s findings of noncompliance.

Finally, Delta challenges the specific relief ordered. It suggests that the
district court abused its discretion by imposing remedies unrelated to the
consent decree’s primary purpose of facilitating the Board’s ability to achieve
unitary status.

Most of the relief ordered plainly enforces the commitments listed in the
original decree. The consent decree required that Delta recruit and advertise
“in a manner that ensures that black students and parents are informed about
the school,” and that it enroll a student body reflective of the racial
demographics of Concordia Parish School District. The new requirement that
Delta establish a diversity committee, with oversight from the special master,
will ensure that Delta creates a long-term plan for recruitment and enrollment
that is consistent with its consent decree obligations.

The consent decree also enjoined Delta from taking any action that
would impede the Board’s ability to comply with the existing desegregation
order. The new 350-student enrollment limit on students from Concordia
Parish enforces that requirement, particularly in the near term, by capping the
number of white students that Delta can draw away from Concordia Parish
before Delta is able to improve its recruitment and enrollment practices.

One aspect of the relief ordered, however, surpasses the scope of the
consent decree. The district court ordered that Delta could not enroll students
from other parishes under desegregation orders without permission from the
relevant school boards. This requirement appears intended to limit Delta’s
interference with the desegregation obligations of other parishes. But Delta’s
consent decree says nothing about other parishes. The scope of the consent

12

 


decree, and the scope of this case, is limited to eliminating the vestiges of de
jure segregation in Concordia Parish. See Firefighters Local Union No. 1784 v.
Stotts, 467 U.S. 561, 574 (1984) (“[T]he ‘scope of a consent decree must be
discerned within its four corners.’” (quoting United States v. Armour & Co., 402
U.S. 673, 682 (1971))). To be sure, the issue of how a charter school that is
authorized to enroll students throughout the state fits into a patchwork of
desegregation orders is a very difficult one, and we have no doubt that the
district court was motivated by the best of intentions in trying to address that
issue. However, the district court exceeded its remedial authority by extending
its reach into parishes that are not part of this case and not contemplated in
the original consent decree. We therefore vacate that portion of the district
court’s order requiring Delta to obtain authorization before enrolling students
from other parishes under separate desegregation orders.

IV.

For the foregoing reasons, we AFFIRM in part and VACATE in part.

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JAMES C. HO, Circuit Judge, concurring:

Delta Charter School first opened its doors to K-12 students in Louisiana
in 2013. The parties agree that Delta has never been found guilty of racial
discrimination. A consent decree nevertheless requires Delta to adopt various
racial balancing policies as a condition of operating the school.

Among other things, the consent decree requires that “Delta Charter
Group’s student enrollment will reflect the racial demographics of the
Concordia Parish School District.” For example, the “Kindergarten class for
the 2017–2018 school year . . . shall at all times be comprised of equal number
of minority (African-American) and non-minority (Caucasian and other)
students (i.e., a 1:1 ratio).” Delta must also “amend its . . . lotteries to
incorporate a preference for a student who seeks to enroll at Delta Charter
School from a Concordia Parish school where his/her race is overrepresented
compared to the overall racial demographics of the District.”

The district court required these racial balancing requirements pursuant
to a desegregation order entered against the Concordia Parish School Board in
1970—nearly half a century before the opening of Delta Charter School.

Delta opposes these racial balancing requirements as unconstitutional.
In so doing, Delta raises an important question: If a charter school wishes to
open and operate in geographic proximity to a public school district that is still
subject to a decades-old desegregation order—and the charter school has itself
never been found guilty of segregation—can a federal court nevertheless
impose racial balancing requirements on the charter school?

The parties agree that this weighty constitutional question is an issue of
first impression. But I agree with the majority that we are not in a position to
answer that question today, because Delta has not adequately presented it at

14


this time. Accordingly, I join the majority opinion and agree that Delta must
present these issues in a future proceeding before the district court.

I.

During oral argument, Delta made clear that it questions the
constitutionality of the racial balancing policies it is currently required to
administer. And in the district court, Delta did file a motion asking the district
court to modify the consent order by removing the racial balancing provisions.

But as the majority opinion correctly points out, Delta did so in untimely
fashion, on the eve of a district court hearing on the Concordia Parish School
Board’s motion for further relief under the consent order. What’s more, Delta’s
notice of appeal states that it is appealing from the grant of further relief to
the School Board under the consent order—not the denial of its own motion to
modify the consent order. Indeed, Delta’s reply brief states that the district
court “has yet to rule” on its motion. So even assuming the issue was squarely
presented below, it is not properly before us on appeal.

II.

On remand, Delta is entitled to a fair hearing on its constitutional
challenge to the racial balancing requirements. The claim is an important one,
because there are serious questions here that should be litigated fully. Indeed,
the Supreme Court has provided two recent signals suggesting that we should
generally be loath to impose racial balancing obligations on institutions that,
like Delta, have never been found guilty of engaging in racial discrimination.

First, in Parents Involved in Community Schools v. Seattle School
District No. 1, 551 U.S. 701 (2007), the Court held unconstitutional certain
racial balancing measures taken by the Seattle and Jefferson County school
districts. As Chief Justice Roberts explained on behalf of himself and three
other justices: “Accepting racial balancing as a compelling state interest would
justify the imposition of racial proportionality throughout American society,

15

 

contrary to our repeated recognition that ‘[a]t the heart of the Constitution’s
guarantee of equal protection lies the simple command that the Government
must treat citizens as individuals, not as simply components of a racial,
religious, sexual or national class.’” Id. at 730 (quoting Miller v. Johnson, 515
U.S. 900, 911 (1995)).

The racial balancing policies challenged here are indistinguishable from
those held unconstitutional in Parents Involved, as the parties acknowledged
at oral argument. Both the United States and the School Board nevertheless
contend that Parents Involved should not apply to Delta, because the Seattle
and Jefferson County school districts are not currently subject to desegregation
orders. But that only begs the question why Parents Involved would not also
apply to a charter school that likewise has never been found guilty of
segregation. As the Chief Justice put it: “For schools that never segregated on
the basis of race, . . . the way to achieve a system of determining admission to
the public schools on a nonracial basis is to stop assigning students on a racial
basis. The way to stop discrimination on the basis of race is to stop
discriminating on the basis of race.” Id. at 747 (emphasis added, quotations
and citations omitted).

Second, in Shelby County v. Holder, 570 U.S. 529 (2013), the Court held
that longstanding measures to eradicate the effects of historical discrimination
must be justified by contemporary realities. Decision-makers ought to
“identify those jurisdictions to be singled out on a basis that makes sense in
light of current conditions,” rather than “rely simply on the past.” Id. at 553.

A court order that treats Delta as a modern-day manifestation of
Concordia Parish and its shameful legacy of racial segregation, without
sufficient evidentiary basis, risks running afoul of this standard. In defense of
the court order, the United States equates new charter schools like Delta to a
so-called “splinter” school district—that is, “a new school district [carved out]

16

 

from an existing district that has not yet completed the process of dismantling
a system of enforced racial segregation.” Wright v. Council of City of Emporia,
407 U.S. 451, 453 (1972).

But Delta is quite different from a splinter district. The splinter district
cases deal with steps taken by “state or local officials” to carve new public
school districts out of old ones—not private citizens seeking to operate a
charter school within geographic proximity of an existing district. United
States v. Scotland Neck City Bd. of Ed., 407 U.S. 484, 489 (1972). There is no
institutional continuity between the Concordia Parish public school system
and Delta. To the contrary, Delta appears to operate over the opposition of
Concordia Parish. Accordingly, if presented with these facts, the Supreme
Court might well find that Delta is an entirely new entrant into the Concordia
Parish community, and should not be presumed discriminatory absent
evidence of its own wrongdoing.

III.

If the School Board believes Delta is masking its true aims and engaged
in the evil institution of racial segregation, it should present its evidence to the
district court and request a finding of racial discrimination. Indeed, the Board
would appear to welcome such an opportunity. It suggests, for example, that
it is no coincidence that Delta uses the same facilities as a previous
“segregationist academy.” For its part, Delta responds that it is simply cheaper
to use buildings that have already been built to serve as classrooms, than to
construct new classrooms from scratch. Both sides deserve full and fair
opportunity to present their case to the district court. Just as Delta can move
to modify the racial balancing provisions as unconstitutional, the Board can
defend those provisions as necessary due to racial discrimination by Delta.

In the absence of a judicial finding of discrimination, however, it remains
an open question whether these racial balancing provisions can satisfy the

17
 

strict scrutiny required by the Supreme Court, based on nothing more than
geographic proximity to a school district subject to a decades-old desegregation
order that long predates the birth of the charter school.

The Supreme Court is strict, because the harm is stark. No matter how
well-intentioned the policy may be, injury is a mathematical certainty, because
educational admissions is a zero-sum game: When a school offers admission
based on a student’s race, it denies admission based on a student’s race. For
every person you “help” due to race, you necessarily hurt another person due
to race. And only by speaking plainly do we ensure fidelity to the Constitution.

* * *

Over six decades have passed since Brown v. Board of Education, 347
U.S. 483 (1954). Yet our Nation continues to struggle to live up to its central
vision—that no matter the circumstances of one’s birth, every child deserves a
shot at the American Dream—and the key to social mobility is a good
education. As Brown observes, “it is doubtful that any child may reasonably
be expected to succeed in life if he is denied the opportunity of an education.
Such an opportunity . . . must be made available to all on equal terms.” Id. at
493 (emphasis added). See also Brown v. Board of Education, 349 U.S. 294,
300–1 (1955) (“[a]t stake is the personal interest of the plaintiffs in admission
to public schools as soon as practicable on a nondiscriminatory” and “nonracial
basis”). The debate over the meaning and implementation of this timeless
vision remains as hotly contested today as ever.

I nevertheless join my colleagues in saving these weighty issues for
another day. I do so not despite, but precisely because of, the fundamental
importance of these issues. The continuing legacy of Brown within the context
of newly formed charter schools is a significant constitutional question—and,
as the parties agree, an uncharted one—that deserves more thorough and

18


rigorous analysis and treatment than has been provided to the district court in
this case to date.

19

Updated October 18, 2018